207 F.

2d 667

ALTON,
v.
ALTON.
No. 11087.

United States Court of Appeals

Third Circuit.
Submitted June 18, 1953.
Decided Oct. 15, 1953.

G. H. T. Dudley, Charlotte Amalie, St. Thomas, Virgin Islands, for

appellant.
Maas & Bailey, Charlotte Amalie, St. Thomas, Virgin Islands, for
appellee.
Before BIGGS, Chief Judge, and MARIS, GOODRICH, McLAUGHLIN,
KALODNER, STALEY and HASTIE, Circuit Judges.
GOODRICH, Circuit Judge.

This case involves an important and novel question with regard to jurisdiction
for divorce. The plaintiff, Sonia Alton, left her home in West Hartford,
Connecticut, and went to the Virgin Islands, where she arrived February 10,
1953. After six weeks and one day continuous presence there she filed a suit for
divorce on March 25, 1953. Her husband, David Alton, defendant, entered an
appearance and waived service of summons. He did not contest the allegations
of the complaint. The commissioner to whom the case was referred filed
findings of fact and conclusions of law and recommended that the plaintiff be
granted a divorce for 'incompatibility of temperament.'1 When the case came to
the judge of the district court he asked for further proof on the question of
domicile. This was not furnished. He thereupon denied the plaintiff the relief
sought, and the case comes here on her appeal. The defendant has filed no brief
and made no argument.
The core of our question is found in two acts of the Legislative Assembly of the

Virgin Islands. The first is the Divorce Law of 1944, section 9 of which
requires six weeks' residence in the Islands prior to commencement of a suit for
divorce.2 In Burch v. Burch, 3 Cir., 1952, 195 F.2d 799, this court construed the
words 'inhabitant' and 'residence' and 'domicile.' In 1953 the Legislative
Assembly passed another act which must be stated in full in order to understand
the specific problem involved in this case. It amends section 9 of the Divorce
Law of 1944 by adding to it an additional subsection (a) which reads:

'Notwithstanding the provisions of section 8 and 9 hereof, if the plaintiff is

within the district at the time of the filing of the complaint and has been
continuously for six weeks immediately prior thereto, this shall be prima facie
evidence of domicile, and where the defendant has been personally served
within the district or enters a general appearance in the action, then the Court
shall have jurisdiction of the action and of the parties thereto without further
reference to domicile or to the place where the marriage was solemnized or the
cause of action arose.' 3

The Legislative Assembly of the Virgin Islands has wide legislative authority.
That authority, of course, comes from the Congress and is found in the organic
act of the Islands. This power extends 'to all subjects of local application not
inconsistent with (other sections of this act) or the laws of the United States
made applicable to said islands * * * .'4 Absent restrictions elsewhere, such a
grant of power to a territory places it on a par with the States as to all matters
properly included in the grant.5

Certainly marriage and divorce are proper subjects of local legislation. So also
is the jurisdiction of local courts. The organic act grants to the District Court of
the Virgin Islands not only jurisdiction over annulment and divorce, but also
jurisdiction over 'all matters and proceedings not otherwise hereinabove
provided * * * which may hereafter be placed within the jurisdiction of the
District Court of the Virgin Islands * * * by local law.'6 We think this language,
applied to divorce jurisdiction, puts the Virgin Islands on a par with the States,
and overrides other restrictive provisions in Congressional legislation affecting
the territories.7

Important as the Legislative Assembly's power is, however, it is like the lawmaking bodies of the States, subject to the limitations of the Constitution of the
United States.8 We approach the problem on review, therefore, as though the
legislation in question had been passed by one of the States in this Circuit.

In connection with this 1953 act of the Virgin Islands, we must notice that it

added an additional section 17 to the Divorce Law providing:

8

'Should any section of this law or part thereof be declared invalid by a Court of
competent jurisdiction, said declaration shall not invalidate the remainder of
this law.'

It is our obligation to separate the parts of the provision under consideration if

we find one part of it is constitutional and the other part is not. Looking at the
language to which our attention is addressed we think it pretty clear as a matter
of construction of the English language that there are here two separable
provisions. There are two rules provided and they are connected with a
conjunctive 'and.' We think, therefore, that we must give attention to the two
clauses independently.

10

We turn first to the opening clause of the statute. Continuous physical presence
in the Islands for six weeks prior to the filing of a complaint in a divorce action
is declared to be prima facie evidence of domicile. The question is whether
such a declaration is within the legislative competence. The test to be applied is
whether the fact or facts to be presumed are reasonably related or have some
rational connection with the fact which creates the presumption. The leading
case is Mobile, J. & K.C.R. Co. v. Turnipseed, 1910, 219 U.S. 35, 31 S.Ct. 136,
55 L.Ed. 78. It has been followed in many cases since.9

11

The problem we must answer is whether six weeks' physical presence creates,
without more, a rational foundation on which to base a finding of domicile. The
requirements for effecting a change of domicile by a person having legal
capacity are clear and undisputed. There must be physical presence in the place
where domicile is claimed and there must be the intent to make that place the
home of the person whose domicile is in question. Restatement, Conflict of
Laws, 15. If these two elements concur even for an instant the domicile is
established at the new place.10

12

Physical presence is easy to prove. It is by far the easier element to establish in

the question of change of domicile, and it is not conclusive one way or the other
in answering the question of location of domicile. The books are full of cases
where persons have been absent from the place of domicile for a long time and
still found not to have lost domicile there.11

13

The statute in question jumps the difficult phase in the proof of domicile,
namely, the intent to make a home in the place where domicile is claimed. It
would not be denied that long continued residence in a place tends to show that

one has made a home there although there are many decisions in which courts
have struggled with the problem even in the face of long continued presence in
a place other than the one which at one time was the domicile of an individual
concerned.12
14

A six-weeks' sojourn without proof of the intent with which one makes it, we
think, tends to establish nothing but the fact of six weeks' physical presence.
Thousands and thousands of people spend six weeks or more in a place every
year on business, for pleasure, for reasons of health, to visit relatives and all the
other different reasons which made Americans move about, without the faintest
intention of making a change in their homes.

15

It is to be noted also that the statutory presumption in this case applies to the
very thing on which jurisdiction is founded. We think it is much easier to
support a presumption or prima facie rule which allows a conclusion such as
negligence to be drawn from named operative facts than it is to support a
conclusion lifting a court into jurisdiction over that which it would not
otherwise have.13 Of course, it may be urged that in the first part of the statute
this conclusion is not an irrevocable one and that the statute speaks in terms of
'prima facie' only. But in considering all this we must open our eyes to the
known facts about divorce litigation in this country. We know that while it is
still conducted against a background of what appears to be ordinary contentions
litigation in a great proportion of cases it is not this way at all. Thus, in the
Virgin Islands for 1952 divorce litigation accounted for 343 cases concluded
during that period; all other civil litigation amounted to only 272 cases. Of
these divorce cases 342 were uncontested.14 Back as far as 1932 surveys
conducted by The Institute of Law of The Johns Hopkins University showed
that in Maryland, a state with almost no migratory divorce problem, only 80
cases were actually contested out of the 2090 actions filed in 1929 and disposed
of by May, 1931. 41.3% of these actions were technically contested by the
filing of an answer. Marshall and May, I The Divorce Court 206-208 (1932).
Statistics from the Bureau of the Census demonstrate the low rate of contested
divorces in this country from 1887 to 1931:

16

It should be noted that in many of these cases the only contest may have been
the filing of an answer. Marriage and Divorce 30, 31 (1930); Marriage and
Divorce 25, 26 (1931). And see Note, The Administration of Divorce: A
Philadelphia Study, 101 U.of Pa.L.Rev. 1204, 1208 (1953). More recent nationwide compilations of such statistics are not available. But several state reports
reveal that the earlier figures are still representative: in 1951, only 7.8% of Iowa
divorces and 11.4% of Nebraska divorces were even technically contested.15
However, Florida contests have increased from 6.4% in 1930 to 34% in 1951.16

This increase is probably the result of Sherrer v. Sherrer, 1948, 334 U.S. 343,
68 S.Ct. 1087, 1097, 92 L.Ed. 1429, and Coe v. Coe, 1948, 334 U.S. 378, 68
S.Ct. 1094, 92 L.Ed. 1451, under which it was established t,at the doctrine of
res judiciata was applicable when the defendant had appeared.
17

All this being so, and there is little doubt about the general facts with regard to
divorce litigation, we think it bears upon the question of whether it is
reasonable to call for an inference of domicile by a set of facts which leaves out
the hard question, namely, intent, and purports to leave open to a nonexisting
opponent the burden of disputing the conclusion which is otherwise to be
drawn. If domicile is really the basis for a divorce jurisdiction, a subject
considered later in this opinion, then six weeks' physical presence without more
is not a reasonable way to prove it.

18

In considering this statute we do not think that we can ignore the facts of life
with respect to migratory divorce in America. It is well known to all of us that
increasingly large numbers of persons who are dissatisfied with their marital lot
are repairing to other jurisdictions, the Virgin Islands among them, where short
residence requirements and liberal grounds for divorce appear to offer them the
relief they desire. In very few of these instances do the parties intend to remain
longer than necessary to obtain the decree sought. Consequently in these cases
the court's finding of domicile usually is contrary to the fact and frequently is
based upon evasive or even perjured testimony. The statutory presumption in
the present case will doubtless eliminate the temptation to such perjury but the
findings based upon it will still be contrary to the true fact in the great majority
of cases. The presumption must, therefore, be regarded as either an
unreasonable interference by the legislative branch of the insular government
with the exercise of the judicial power by the judicial branch or as an attempt
by the legislature to convert the suit for divorce into what is in fact a transitory
action masquerading under a fiction of domiciliary jurisdiction. We think that
looked at in any of these ways the portion of the statute which provides for
such a prima facie conclusion is invalid.

19

We pass, therefore, to the second part of the statute. The second part of the
statute goes on to provide that the court shall have jurisdiction, after six weeks'
residence by the plaintiff, where the defendant has been personally served or
appeared, 'without further reference to domicile.' In other words, if the
defendant is before the court, the case is to proceed without reference to
domicile.17 The action, in other words, is to become a simple transitory action
like a suit for tort or breach of contract where, the defendant being in court and
the court competent to proceed in this type of action, all the requisites for
jurisdiction are satisfied. Can divorce be turned into a simple, transitory action

at the will of any legislature?

20

The background of divorce legislation and litigation shows that it has not been
considered a simple transitory personal action. The principle said to govern is
that marriage is a matter of public concern, as well as a matter of interest to the
parties involved. Because it is a matter of public concern, the public, through
the state, has an interest both in its formation and in its dissolution, and the state
which has that interest is the state of domicile, because that is where the party
'dwelleth and hath his home.'

21

The point is so fundamentally important here, that a quotation from Supreme

Court language is called for. Mr. Justice Frankfurter, speaking for the Court
said:

22

'Under our system of law, judicial power to grant a divorce- jurisdiction, strictly
speaking- is founded on domicil. Bell v. Bell, 181 U.S. 175; (21 S.Ct. 551, 45
L.Ed. 804); Andrews v. Andrews, 188 U.S. 14. (23 S.Ct. 237, 47 L.Ed. 366.)
The framers of the Constitution were familiar with this jurisdictional
prerequisite, and since 1789 neither this Court nor any other court in the
English-speaking world has questioned it. Domicil implies a nexus between
person and place of such permanence as to control the creation of legal relations
and responsibilities of the utmost significance. The domicil of one spouse
within a State gives power to that State, we have held, to dissolve a marriage
wheresoever contracted. In view of Williams v. North Carolina, supra (325 U.s.
226, 65 S.Ct. 1092, 89 L.Ed. 1577,), the jurisdictional requirement of domicil is
freed from confusing refinements about 'matrimonial domicil,' see Davis v.
Davis, 305 U.S. 32, 41 (59 S.Ct. 3, 6, 83 L.Ed. 26,) and the like. Divorce, like
marriage, is of concern not merely to the immediate parties. It affects personal
rights of the deepest significance. It also touches basic interests of society.
Since divorce like marriage, creates a new status, every consideration of policy
makes it desirable that the effect should be the same wherever the question
arises.'18

23

So deeply has it been thought that the responsibility for divorce was that of the
domicile, that divorce litigation has been called an action in rem, the res being
the marital relationship between the parties.19 One may question whether the
analogy has not caused more confusion than clarity, but at any rate it shows the
way in which the matter has been regarded in the law. It is of significance upon
the importance of domicile as the foundation for jurisdiction that the Supreme
Court has recently held that a divorce action at the domicile of one of the
parties is entitled to full faith and credit as a matter of constitutional compulsion
even without the presence of the defending spouse.20 On the other hand, a

divorce not at the domicile gives no protection against a prosecution for

bigamy in the state of the domicile,21 although if the defendant is in court he,
himself, may be precluded from questioning the decree on the grounds of res
judiciata.22
24

We now go out beyond the place where legal trails end. The Supreme Court has
never had occasion to say what would happen in a case where two parties,
being personally before the court, are purportedly divorced by a state which has
no domiciliary jurisdiction, and the question of the validity of the decree comes
up in a second state in a prosecution for bigamy, or in a suit for necessaries by a
creditor, or in some other such fashion. Granted that the parties are precluded
from attacking the decree, does that immunity extend only to attacks by them or
by those in privity with them?23 Here is an unanswered question. The answer
would be conclusive in this case if Mrs. Alton had got her divorce, had remarried, and had been prosecuted for adultery in Connecticut.

25

But assume that the Virgin Islands cannot grant to a nondomiciliary a decree
which will be impregnable elsewhere by the shield of full faith and credit. Can
it not, if it pleases provide for the granting of a divorce decree to any plaintiff
who has a defendant in court in the Virgin Islands? If the decree is good by the
law of the Islands and the parties thereto and those in privity with them cannot
attack it, it may well be good enough for practical purposes in a world where
divorce decrees as well as everything else may fall short of perfection. But is
such a decree, which the parties might regard as good enough, one which a
nondomiciliary court may grant?

26

The Seventh Circuit has thought that there could be a divorce decree valid in
the state where granted but invalid elsewhere.24 Its judgment that Illinois must
honor a Nevada marriage following a Nevada divorce, instead of a subsequent
New York judgment invalidating the divorce and annulling the marriage for
want of a Nevada domicile, was reversed by the Supreme Court.25 That Court's
decision was an application of the full faith and credit clause, which is not
involved here at this state of the proceedings. But if the opinion of the Seventh
Circuit was directed at the validity of a divorce decree in the rendering state
before subsequent proceedings call for the application of the full faith and
credit clause we are, with due deference, compelled to disagree.

27

Before the days of the Fourteenth Amendment, a state could and some states
did, pass rules for the exercise of jurisdiction against nonconsenting,
nonresident absentee defendants. These rules were not based upon what are
now considered the fundamental requisites for such jurisdiction.26 The
judgments were not recognized in other states under the full faith and credit

clause, but there was no foundation for testing their validity in the state where
they were rendered. 27 After the Fourteenth Amendment provided a way for
testing the validity of these judgments in the rendering state under the due
process clause, it became well settled that an attempt to give a personal
judgment for money against one not subject to the state's jurisdiction was
invalid at home under due process, as well as invalid abroad under full faith and
credit.28 With regard to this type of case one can generalize and say that due
process at home and full faith and credit in another state are correlative.
28

The Restatement of Conflict of Laws says flatly that a state may not create an
interest where it does not have jurisdiction.29 Undoubtedly the result of a
divorce decree is to affect interests in a matrimonial relationship. If it is still
correct to say that the basis for divorce jurisdiction is domicile a state where the
party is not domiciled is, in rendering him a divorce attempting to create an
interest where it has no jurisdiction. Its attempt to do so is an invalid attempt,
and contrary to the due process clause.30

29

We think that the premise that divorce jurisdiction is founded on domicile is

still the law. It was reiterated by the Supreme Court in unequivocal language in
the quotation cited above, which language is the more significant because of
the strong dissent expressed by Mr. Justice Rutledge. If that premise is to
disappear in the light of real or supposed change in social concepts, its
disappearance should be the result of the action of higher authority than ours.

30

The result suggested above is not spelled out in the books. If the Restatement
generalization is correct the application necessarily follows. The Restatement
generalization is demonstrably correct so far as a personal judgment for money
is concerned. The arguable point here is whether in a world of changing mores
jurisdiction for divorce based on domicile is as fundamental as the rule that you
must have a defendant subject to your jurisdiction before you can give a
personal judgment against him. Minority dictum from a member of the
Supreme Court has indicated impatience with the domiciliary requirement.31

31

We think that adherence to the domiciliary requirement is necessary if our

states are really to have control over the domestic relations of their citizens. The
instant case would be typical. In the Virgin Islands incompatibility of
temperament constitutes grounds for divorce.32 In Connecticut it does not.33 We
take it that it is all very well for the Virgin Islands to provide for whatever
matrimonial regime it pleases for people who live there. But the same privilege
should be afforded to those who control affairs in Connecticut.

32

Our conclusion is that the second part of this statute conflicts with the due

32

Our conclusion is that the second part of this statute conflicts with the due
process clause of the Fifth Amendment and the Organic Act. Domestic
relations are a matter of concern to the state where a person is domiciled. An
attempt by another jurisdiction to affect the relation of a foreign domiciliary is
unconstitutional even though both parties are in court and neither one raises the
question. The question may well be asked as to what the lack of due process is.
The defendant is not complaining. Nevertheless, if the jurisdiction for divorce
continues to be based on domicile, as we think it does, we believe it to be lack
of due process for one state to take to itself the readjustment of domestic
relations between those domiciled elsewhere. The Supreme Court has in a
number of cases used the due process clause to correct states which have passed
beyond what that court has considered proper choice-of-law rules.34

33

If we are right so far in holding that the Virgin Islands have no jurisdiction to
give divorces to persons not domiciled there, the second part of the statute
quoted cannot aid the plaintiff's case. That part of the statute seems to say that
if the parties are in court and do not object the court may not exercise its
curiosity by finding out if there really is a domicile in the forum. It is well
settled, of course, that parties cannot by their consent confer jurisdiction of the
subject matter upon a court which does not have authority to deal with that
subject matter. We have endeavored to show that the Virgin Islands do not have
authority to deal with a marriage relation between nondomiciliaries. If that is
right, forbidding a court to inquire whether a party is a nondomiciliary is a
useless provision. Suppose a state statute purported to confer jurisdiction in
matters concerning collision at sea upon a state court, in the absence of dissent
by either party. Surely a conscientious state judge would not give any effect to
the attempt by the legislature and the parties to take over what the Constitution
assigns to another system of courts. The same is true here.

34

The judgment of the district court will be affirmed.

35

HASTIE, Circuit Judge (dissenting).

36

Prior to its recent amendment, which is here in controversy, the divorce statute
of the Virgin Islands was silent as to the jurisdictional basis of divorce in that
United States possession, except for a requirement that one suing for divorce
must show that he has resided in the territory six weeks and must give the
defendant appropriate notice of the pendency of the suit. However the system
and the generally accepted rules of the common law obtain in the Virgin
Islands, except as modified by statute. Accordingly, without benefit of any
additional legislative definition of divorce jurisdiction, it was judicially
declared by this court that in the Virgin Islands a divorce could be granted only

to a party who was domiciled there. Burch v. Burch, 3 Cir. 1952, 195 F.2d 799.
37

With the law in this state the legislative authority of the Virgin Islands in 1953
amended the divorce statute to change the preexisting situation in two ways.
First, proof that the plaintiff in a divorce action has been continuously present
in the Virgin Islands for six weeks is now made prima facie evidence of that
party's domicil in the territory. Second, where personal jurisdiction has been
obtained over both spouses the divorce power may be exercised in favor of a
complaining spouse who has resided in the territory for six weeks, regardless of
domicil. The result of this legislation is to establish alternative bases of divorce
jurisdiction, the one predicated upon domicil without regard to personal
jurisdiction over the defendant, and the other predicated upon personal
jurisdiction over both spouses without regard to domicil. And, in either event,
the legislature has deemed it appropriate to require six weeks' residence before
the suitor's complaint shall be entertained.

38

The majority of the court think that both of these changes violate the
Constitution of the United States. Dissenting, I think both changes are within
legislative competency. They are of course quite different in their nature and
effect and require separate analysis.

39

* The first challenged amendment to the Virgin Islands divorce statute merely
adds to preexisting law a provision that six weeks continuous presence in the
Virgin Islands shall constitute prima facie proof of domicil there. At the outset
it is to be emphasized that this is not a substitution of a requirement of six
weeks' presence for the requirement of domicil. Domicil remains the
jurisdictional fact to be proved. Evidence is admissible to prove or disprove the
plaintiff's domicil in the Virgin Islands exactly as it was before the statute was
amended. The amendment merely shifts the burden of going forward with
evidence if the hearing developes a certain situation; namely, that on the issue
of domicil there is proof of six weeks continuous presence and no other
evidence. The normal course of introduction of other evidence is in no way
impeded. The defendant may present his own witnesses or cross-examine the
plaintiff's witnesses. The court may exercise its normal prerogative of
interrogating witnesses where their testimony is unclear or otherwise
unsatisfactory. If, despite this full opportunity for rebuttal of the statutory
presumption there is no refutation, then, and only then, must the court conclude
that plaintiff has established his domicil in the territory. This is the total effect
of the statutory provision now under consideration.

40

The court says that this evidentiary rule offends the due process clause of the
Fifth Amendment. However, it recognizes that the only requirement of the Fifth

Amendment in such a situation, as stated in Mobile, Jackson & Kansas City R.

Co. v. Turnipseed, 1910, 219 U.S. 35, 31 S.Ct. 136, 138, 55 L.Ed. 78, and
frequently reiterated since then, is that there must be 'some rational connection'
between the proved fact and the presumed fact so that the inference of the
existence of one from the proof of the other is not 'so unreasonable as to be a
purely arbitrary mandate.'
41

Up to this point I think we all are in agreement. Our divergence comes in the
application of the Turnipseed doctrine. I think the most stringent rule that can
be derived from the Turnipseed case and those that apply it- and many of the
cases do not go this far1 - is that the fact accorded the value of prima facie
evidence have such relationship to the matter in issue as to be admissible in
evidence as relevant and material to that issue. This does not mean that the
proved fact standing alone need be enough to go to the jury on the matter in
issue, absent the statutory rule. It means merely that without the statute the
proved fact would be a normal and proper item in the total body of evidence
introduced and effective to establish the ultimate fact.

42

Here the question is whether an individual has acquired a new domicil of

choice. Ordinarily to establish the affirmative of that issue it would be
necessary to show that the individual in question had come to the place of
alleged new domicil and that his presence there was coupled with an intention
to make that place his home for an indefinite period. Gallagher v. Philadelphia
Transportation Co., 3 Cir., 1950, 185 F.2d 543. Of course proof of six weeks
presence standing alone would establish the physical element of domicil. And
the fact that one has been continuously in the community for more than a
month is one relevant fact which, in normal course without any statutory
presumption, would properly be accepted, along with any and all other indicia
of connection with and attachment to the community, as some objective
manifestation of an intention to make more than a transient sojourn. It would be
proof of behavior having some probative value on the question of the state of
mind. Thus it seems to me that the rational connection between six weeks
continuous presence and domicil is substantial and very clear. It proves one
element of domicil and is relevant to the other. In these circumstances it is
difficult to see upon what basis the statutory presumption can be attacked
unless it is argued that domicil must in logic be inferable from six weeks
presence standing alone before the latter fact can by legislation be made prima
facie evidence of the former. Apparently, this is the view of the majority. The
difficulty with that position is that the Supreme Court seems to have settled the
law the other way. The accepted doctrine was stated in Yee Hem v. United
States, 1925, 268 U.S. 178, 45 S.Ct. 470, 472, 69 L.Ed. 904, as follows: 'If the
effect of the legislative act is to give to the facts from which the presumption is

drawn an artificial value to some extent, it is no more than happens in respect of

a great variety of presumptions not resting upon statute.' An examination of the
cases shows that the Supreme Court and other courts have repeatedly approved
statutes which, for the limited purpose of prima facie proof as herein defined,
accord facts greater artificial probative value than is attributed to the proved
fact by the present statute. Thus membership in any organization on a state's
subversive list may validly be made prima facie evidence that the individual
himself advocates the overthrow of our government by force. Adler v. Board of
Education, 1952, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517. A statute may
make the fact that a naturalized citizen goes abroad to establish his home
within five years after his acquisition of American citizenship prima facie
evidence that he fraudulently his acquisition of American citizenship prima
facie evidence that he fraudulently misrepresented his intention to adhere to this
country years earlier when he applied for citizenship, Luria v. United States,
1913, 231 U.S. 9, 34 S.Ct. 10, 58 L.Ed. 101. Congress can validly provide that
possession of narcotics without a package bearing a revenue stamp creates a
rebuttable presumption that the possessor acquired them by purchase and not in
a stamped package. Casey v. United States, 1928, 276 U.S. 413, 48 S.Ct. 603,
72 L.Ed. 632. Under the statute approved in the Turnipseed case itself, the fact
that a moving train damages a person or property, unless rebutted, requires a
conclusion that the employees of the railroad were negligent. Under another
rather familiar type of statute, if an automobile driven by a person not its owner
is involved in a collision, the driver is to be regarded as the agent of the owner,
unless evidence is adduced to the contrary. Koops v. Gregg, 1943, 130 Conn.
185, 32 A.2d 653. Cf. People V. Kayne, 1938, 286 Mich. 571, 282 N.W. 248.
A statute may raise a presumption of fraud against a bank's officers and
directors from the fact that the bank has become insolvent. Griffin v. State,
1914, 142 Ga. 636, 83 S.E. 540, L.R.A. 1915C, 716. Even the commonplace
presumption that motorists and pedestrians on today's highways use due care
for their safety, however, useful as a rule of evidence, is highly artificial if
measured by common experience. If artificiality does not condemn all these
rules and many others as well, I cannot see anything objectionable in the
provision in suit.
43

The opinion of the court makes two additional points. One seems to be that this
statute should be treated as if it embodied something different from the
ordinary shifting of the burden of going forward with evidence because in so
many jurisdictions, including the Virgin Islands, so few defendants elect to
contest divorce actions. To me this circumstance is not relevant to the question
of legislative power to make one fact prima facie evidence of another. I cannot
see that the percentage of defendants who take advantage of the opportunity to
rebut a presumption affects the genuineness or the essential fairness of the

opportunity the legislature has given all defendants to eliminate the

presumption entirely by merely offering evidence on the ultimate issue. And
that, in my judgment, is the important consideration here.
44

The other point urged by the majority is that because the issue of domicil goes
to the jurisdiction of the court the fact from which domicil is presumed must be
more strongly probative than a fact normally must be to become prima facie
evidence of another fact. It is recognized that there is no authority for this
proposition, but it is advanced by its proponents as an inherently reasonable
distinction. However, it seems to me that the answer to the critical question
whether it is arbitrary and unfair to create a presumptive relationship between a
period of presence and domicil is in logic the same whether in a given case the
purpose of proving domicil is to determine the inheritance of personal property,
or voting rights, or entitlement to poor relief, or the existence of divorce
jurisdiction or any other issue in a lawsuit. Indeed, from the point of view of a
defendant I think it is more likely to be harmful to use a statutory presumption
to establish the merits of a claim against him than to determine whether one
professionally competent tribunal or another is to hear the suit.

45

This brings me to my last point on this provision of the statute. Whom does the
questioned rule of evidence deprive of anything without due process of law?
The Fifth Amendment says 'No person shall be' denied the essentials of fair
procedure. But the present rule deprives no defendant of a fair and full
opportunity to challenge the domiciliary claims of the plaintiff and the
jurisdiction of the court. In contrast it is instructive to consider how much
harsher and more drastic than this provision is the legislation approved as
consistent with due process by the Supreme Court in York v. State of Texas,
1890, 137 U.S. 15, 11 S.Ct. 9, 34 L.Ed. 604, under which a defendant could not
even appear to challenge the jurisdiction of a court without submitting fully to
its attempted assertion of power.

46

Also relevant to the problem of finding whose rights this statute invades is the
fact that the present defendant has not even questioned the validity of the
Virgin Islands rule of prima facie evidence. This is something the courts are
doing on their own initiative.
II

47

In striking down the second amendment of the statute, which provides for
divorce where both parties are subject to the jurisdiction of the insular
possession and its courts, this court now says that the Fifth Amendment

requires that the exercise of legal power to grant divorce by restricted to those
cases where one party at least is a local domiciliary. The agreed starting point
in this phase of the case is the fact that English and American judges in recent
times have refrained, in the absence of statute, from exercising their divorce
power except in cases involving local domiciliaries. But what is it that raises
this judicial rule of self-restraint to the status of an invariable Constitutional
principle? What makes any legislative effort to establish an alternative basis
upon which state power may be exercised in divorce cases a violation of due
process of law?
48

I can find nothing in the history of the present judge-made rule which entitles it
to Constitutional sanction. Certainly it is no ancient landmark of the common
law. I do not know of any evidence that such a concept even existed in the
jurisprudence of 18th century England or that it could even possibly have been
a part of the conception of procedural due process at the time our Constitution
was adopted.

49

The common law courts in England had no divorce jurisdiction at the time of
the American Revolution and I know of none which was exercised by the
courts in the North American British colonies. The English ecclesiastical courts
could grant a form of relief analogous to our present separation from bed and
board. And Parliament could legislate an absolute divorce, presumably for any
subject of the King wherever he might make his home. But it was not until
1857 that the common law courts in England were for the first time given
authority to entertain divorce causes. See 20 and 21 Vict. c. 85.

50

In the United States our Constitutional scheme placed this power among those
relegated to the several states. They began exercising it through their courts in
the early days of the nation. A contemporary scholar has suggested, and I have
seen no contrary evidence or suggestion, that it was Story, in the 1834
publication of the first edition of his Commentaries on the Conflict of Laws,
who first gave currency to and soon won rather general judicial acceptance for
the theory that matters of divorce should be left to the place where the spouses
made their home. Cook, Is Haddock v. Haddock Overruled, 1943, 18 Ind.L.J.
165. Perhaps this is an oversimplification of history. However, it does seem
clear that the rule that divorce jurisdiction will be exercised only by the courts
of a state which has a domiciliary connection with the spouses is a creation of
nineteenth century American judges. It is also clear that the rule did not
become settled in England, the normal source of common law tradition, until
the 1895 decision of the Privy Council in Le Mesurier v. Le Mesurier, (1895)
A.C. 517. Thus, we seem to have the curious chronology of the American
courts adopting a rule of practice in the first half of the nineteenth century

under the influence of the creative scholarship of a distinguished writer, the

British courts adopting this doctrine in the latter half of the nineteenth century,
and now in midtwentieth century, America judges saying that the doctrine is
one of those fundamental ideas which must be read into the original provisions
of our Constitution. My conclusion is that, on such evidence as is at hand, the
limitation of the divorce power to the domiciliary state has no such ancient
roots or impressive history as to suggest its entitlement to perpetuation as a
Constitutional requirement.
51

I do not mean to suggest that prerevolutionary existence is essential to

Constitutional protection of a doctrine. But it does seem to me that when a rule
is one of self-limitation which judges have imposed upon themselves in
relatively recent times we should not treat it as a Constitutional requirement
unless it is very plain that a proposed legislative change would result in a
fundamentally arbitrary and unfair way of dealing with men in modern society.
Accordingly, I think our real question on this phase of the case is whether it is
clearly arbitrary or unfair for a legislature to adopt an alternative for domicil as
an appropriate foundation for divorce power.

52

When I get to this point I am impressed that a number of states in the British
Commonwealth have by legislation made domicil unnecessary to divorce
jurisdiction in various situations. See Griswold, Divorce Jurisdiction and
Recognition of Divorce Decrees- A Comparative Study, 1951, 65 Harv.L.Rev.
193, 197-208. I find it difficult to see in what respect these abandonments of
domicil as a fundamental basis of divorce are patently unfair and arbitrary, even
though a particular legislature may not have been restrained by a written
Constitution.

53

I have also found it helpful in judging whether the domiciliary rule is a

Constitutional necessity to reread some of the judicial discussion before our
judicial forbears, through much restatement by themselves, had come to regard
this rule as something fundamental in the legal order. I find particularly
interesting the discussion of the Lord Justices in Niboyet v. Niboyet, 1878, L.R.
4 P.D. 1. The Justices there debated the merits and demerits of the domicil rule
against a wider rule which would extend jurisdiction to persons living for the
time being in England but domiciled in France. The reading os such a judicial
discussion leaves one rather confident that there is nothing in the essential
nature of civilized procedure or even inherent in the common law viewpoint
which makes the domicil rule a must.

54

I think the soundness of this view is but emphasized if one contests the
majority's position on the ground of its own choosing. The court reasons this

way: 'Because it (marriage) is a matter of public concern, the public, through

the state, has an interest both in its formation and in its dissolution, and the state
which has that interest is the state of domicile, because that is where the party
'dwelleth and hath his home". Accordingly, the court concludes 'that adherence
to the domiciliary requirement is necessary if our states are really to have
control over the domestic relations of their citizens', and that any departure
from the domiciliary rule would be a denial of procedural due process. This
statement of social justification of a legal rule presupposes a stable and intimate
attachment of both spouses to a single community which in fact and alone has a
genuine interest in their relationship.2 But this picture is no longer characteristic
of our society or of the conduct of estranged spouses in it. In their activities and
their careers men are increasingly mobile. Community attachments tend to be
less intimate and less lasting than heretofore. And when the unsettling factor of
domestic estrangement is added there is considerable likelihood that the
spouses will go their separate ways in different communities. One need not
approve these patterns of behavior to recognize what doubt they cast upon the
essentiality of a legal rule which must be justified by premising a single
community which alone and intimately is concerned with each unsuccessful
marriage.
55

Actually, the concept of domicil as a basis of jurisdiction is in practice elusive

and very unsatisfactory for several reasons. It is a highly technical concept
depending upon the proof of the mental attitude of a person toward a place.
Whether in taxation or in divorce, the use of domicil as a jurisdictional base
gives trouble when it is applied to people who really have no 'home feeling'
toward any place or, at the other end of the scale, to those who have more than
one home. And, as already pointed out, in the divorce field difficulties are
multiplied because the estranged spouses so often establish separate homes.
Thus when a court is asked to grant a divorce it very often finds that not one
domicil but at least two- potentially more through refinements of the 'marital
domicil' concept- may be interested in the parties and their relationship. In these
all too familiar situations of divided domicil, the jurisdictional requirement
which the majority regards as so essential to fairness that it can not be changed
is a troublemaker and a potential source of injustice.

56

In this very case, suppose Mrs. Alton had proved to the satisfaction of the
majority of this court that her six weeks stay in the Virgin Islands had been
attended by the intention to remain there permanently, while Mr. Alton
continued a domiciliary of Connecticut. Under the rule of the power of the
domicil of one spouse as settled in Williams v. State of North Carolina, 1942,
317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, overruling Haddock v. Haddock,
1906 201 U.S. 562, 26 S.Ct. 525, 50 L.Ed. 867, it is clear that the Virgin

Islands would have plenary divorce power in this situation. But what of the
interest of Connecticut, the home of the husband, the place of marriage, and the
last matrimonial domicil, which must be very important under the
rationalization offered to justify the domiciliary rule? Or consider the facts in
Maynard v. Hill, 1887, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed. 654, where the
Territory of Oregon granted a legislative divorce to a man who had left his
family in the east, promising to send for them when he became settled in the
west, but instead persuaded a friendly territorial legislature in his new home to
grant him a divorce. The domiciliary rule says that Oregon had jurisdiction to
divorce the parties. In all such cases as these the domiciliary rule permits the
public interest and concern of the defendant's domicil as well as his personal
interest to be ignored entirely if it can only be shown that the complaining
spouse really intends to live in the place where suit is filed.
57

At this stage it seems to me that a reasonable person can say that the
domiciliary rule does not accomplish what its proponents, including the
majority here, claim for it. If it is socially justified in some circumstances, it
works unfairly without social justification in others. Perhaps the trouble is that
it exaggerates the theoretical interest of the technical domicil of a plaintiff at
the time of suit for divorce at the expense of personal and community interests
on the defendant's side.

58

When the merits and demerits of the rule of domiciliary jurisdiction are thus
weighed, one person may conclude that it still works well enough in a large
enough number of cases to deserve retention. But that permissible conclusion
cannot be a requirement of justice or logic. There is room for difference of
judgment.

59

In the Virgin Islands it has seemed to the legislature that an alternative to the
domiciliary rule is worth a trial. And in selecting the alternative of personal
jurisdiction over both parties, the legislature has obviated that very disregard of
interests on the defendant's side which is the great weakness of the domiciliary
rule. In this action I can find nothing arbitrary or unfair; hence, nothing
inconsistent with the Fifth Amendment.

60

One other matter should be mentioned. Although the court recognizes that, as
concerns authoritative precedents, this case requires us to travel beyond the
place 'where legal trails end', the majority opinion places some reliance upon
the less than pellucid body of case law which is concerned with various aspects
of the problem of recognition of divorce granted in one state of the union by a
sister state. For present purposes I do not find these cases very helpful. The due
process question in divorce jurisdiction which we have to decide is whether it is

fair for a state and its courts to adjudicate the merits of a petition for the
dissolution of a particular marriage. The problem of the full faith and credit
cases is to what extent a second state must subordinate its notions of policy
about a marital matter in which it wants to have a voice to what a sister state has
already decided. Perhaps full faith should be given to every American divorce
decree which satisfies due process. But until the Supreme Court makes it clear
that in this area due process and full faith are of the same dimensions, I mistrust
any inversion of the reasoning which would extract from the not invariant line
of decisions on full faith and credit the essentials of due process in the original
exercise of divorce power.
III
61

Although for the reasons already stated I believe both of the questioned
provisions of the Virgin Islands divorce statute are valid, they may differ in
their bearing upon the proper disposition of a suit.

62

In all of the proceedings in this case prior to decision by this court the litigation
has been treated as if it involved only the problem of adequate prima facie proof
of domicil, and not the alternative possibility of maintaining the suit regardless
of domicil. Thus, when the matter came before the district court on motion to
confirm findings of the commissioner who had sat as a master, there was this
colloquy between the court and counsel:

63

'The Court: I have looked at the Transcript of the Record herein and I would
like to ask whether you have any more evidence to offer on the question of
domicile.

64

'Mr. Dudley: No, sir.

65

'The Court: It is my opinion, after examining the record, that the proof herein is
not sufficient to establish domicile in accordance with the directive in the case
of Burch v. Burch, decided by the Court of Appeals of this Circuit.

66

'Mr. Dudley: If you Honor please, our divorce law has been amended as of May
29, 1953, and there is a new section 9a now in effect which makes six weeks
residence on the part of the plaintiff prior to the filing of the complaint prima
facie evidence of domicile.

67

'The Court: I have seen the new section and, as I said before, I doubt whether it

is sufficient to confer jurisdiction, and I will have to deny your motion. The
motion will therefore be denied and the complaint will be dismissed.'
68

In this court the appellant has urged only that the ruling based upon the above
quoted colloquy was incorrect. Since the plaintiff has thus tried to prove
domicil and contends that she succeeded, I think there should be reversal on the
ground that she did prove domicil in the manner provided by a valid statute.

69

But because the majority, disapproving this rule of prima facie evidence, found
it necessary also to consider the second provision of the statute, I have thought
it appropriate to set out my reasons for believing that the due process clause
does not prevent the entertaining and adjudicating of a divorce action in any
American state or territory which has personal jurisdiction over both spouses.
However, it seems proper to point out that if a state proceeds upon this new
basis of divorce jurisdiction another conflict of laws difficulty must be faced
before the merits of the claim can be decided. That difficulty is the proper
choice of the law to govern the controversy.

70

So long as one of the spouses has had a domiciliary relationship to the forum it
has been conventional theory that the forum has sufficient connection with the
domestic relation which is the subject matter of suit to justify not only the
exercise of its judicial power to decide the controversy but also the application
of its own substantive law of divorce as well. Stewart v. Stewart, 1919, 32
Idaho 180, 180 P. 165. It is quite possible that some of the difficulties which
have arisen in this field are the result of failure to keep in view that these are
distinct problems although the existence of a domiciliary relationship is thought
to solve both.

71

But once the power to decide the case is based merely upon personal
jurisdiction a court must decide as a separate question upon what basis, if any,
the local substantive law of divorce can properly be applied to determine
whether the plaintiff is entitled to the relief sought. In this case, if it should
appear that Mr. and Mrs. Alton were both domiciled in Connecticut at the time
of suit in the Virgin Islands and that their estrangement had resulted from
conduct in the matrimonial home state, it may well be that under correct
application of conflict of laws doctrine, and even under the due process clause,
it is encumbent upon the Virgin Islands, lacking connection with the subject
matter, to apply the divorce law of some state that has such connection, here
Connecticut. Cf. Hartford Accident & Indemnity Co. v. Delta & Pine Land Co.,
1934, 292 U.S. 143, 54 S.Ct. 634, 78 L.Ed. 1178; Home Ins. Co. v. Dick, 1930,
281 U.S. 397, 50 S.Ct. 338, 74 L.Ed. 926.

72

Of course such a solution would be a novelty in divorce procedure. But the

entire situation presented by this statute is very unusual. And the legislation is
an innovation in a very important area. I think, therefore, that we should try to
answer no more questions than the exigencies of this litigation require. I am
specially reluctant to express any judgment on a point which was not
considered below and was not briefed before us. Accordingly, I do no more
than point out that this choice of law question would have to be considered if
the court's power to decide this case depended upon personal jurisdiction and
that basis of jurisdiction were sustained, as I believe it should be.

73

As this case actually stands before us, I think we need and should do no more
than to reverse on the issue that was actually contested in the district court.

74

I am authorized to state that Chief Judge BIGGS and Circuit Judge

KALODNER concur in the views stated in this opinion.

This is one of eight grounds specified in the Divorce Law of the Virgin Islands,
Act of the Legislative Assembly of the Virgin Islands approved December 29,
1944, Sec. 7

Act of the Legislative Assembly of the Virgin Islands approved December 29,
1944, 9

Bill No. 55, 17th Legislative Assembly of the Virgin Islands passed May 19,
1953, approved May 29, 1953, amending Sec. 9 of the Divorce Law of 1944

48 U.S.C.A. 1405r

Yerian v. Territory of Hawaii, 9 Cir., 1942, 130 F.2d 786, 789; Brodhead v.
Borthwick, 9 Cir., 1949, 174 F.2d 21, certiorari denied, 1949, 338 U.S. 847, 70
S.Ct. 87, 94 L.Ed. 518; Kitagawa v. Shipman, 9 Cir., 1931, 54 F.2d 313,
certiorari denied, 1932, 286 U.S. 543, 52 S.Ct. 496, 76 L.Ed. 1281; Lastra v.
New York & Porto Rico S.S. Co., 1 Cir. 1924, 2 F.2d 812, appeal dismissed,
1925, 269 U.S. 536, 46 S.Ct. 106, 70 L.Ed. 400; Gonzalez v. People of Porto
Rico, 1 Cir., 1931, 51 F.2d 61; People of Puerto Rico v. Eastern Sugar
Associates, 1 Cir., 1946, 156 F.2d 316, certiorari denied, 1946, 329 U.S. 772,
67 S.Ct. 190, 91 L.Ed. 664
The similarity of territories and states has also evoked the complementary
principle that even though Congress may relieve the territories of restrictions
that the Constitution imposes on the states, like the ban on burdening interstate

commerce, only the clearest evidence of such intent will authorize the
conclusion that it has done so. Mullaney v. Anderson, 1952, 342 U.S. 415, 72
S.Ct. 428, 96 L.Ed. 458.
6
7

48 U.S.C.A. 1406(4), (8)

We do not think 48 U.S.C.A. 1471, prohibiting territorial passage of 'special'
divorce laws, or Sec. 1463, granting territorial courts 'common-law jurisdiction,'
have any application here. Nor do the judiciary regulations of title 28 of the
Code affect this case. See Sec. 451 of that title, also 48 U.S.C.A. 1405z and
Sec. 1406. See also I Moore's Federal Practice 51-66 (1938 ed.)
The Constitutional limitations of the 5th, 6th, and 7th Amendments on the
power of Congress to legislate, and consequently on the legislative power
exercisable by territorial bodies created by Congress, apply ex proprio vigore in
'incorporated' or 'organized' territories that are part of the 'United States.'
Rassmussen v. United States, 1905, 197 U.S. 516, 25 S.Ct. 514, 49 L.Ed. 862.
But, although it first seemed that these and similar limitations applied to all the
territory over which the United States was sovereign, Dred Scott v. Sandford,
1857, 19 How. 393, 15 L.Ed. 691, it seems to be settled that the entire
Constitution does not extend of its own force to unincorporated areas. Dorr v.
United States, 1904, 195 U.S. 138, 24 S.Ct. 808, 49 L.Ed. 128 (no guarantee of
trial by jury in the Philippine Islands); Balzac v. People of Porto Rico, 1922,
258 U.S. 298, 42 S.Ct. 343, 66 L.Ed. 627 (no guarantee of trial by jury in
Puerto Rico); Downes v. Bidwell, 1901, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed.
1088 (no requirement that imposts be uniform in Puerto Rico). There have been
from time to time, however, statements by the Supreme Court to the effect that
there are certain 'fundamental' rights protected by the Constitution which
extend wherever the United States is sovereign. See Downes v. Bidwell, supra,
182 U.S.at pages 276-277 21 S.Ct. 770, 45 L.Ed. 1088 (First Amendment; right
to own property); Balzac v. People of Porto Rico, supra, 258 U.S.at pages 312313, 42 S.Ct. 343, 66 S.Ct. 627 (Fifth Amendment); Dorr v. United States,
supra, 195 U.S.at pages 146-147, 24 S.Ct. 808, 49 L.Ed. 128
The Court of Appeals for the First Circuit has held the due process clause of the
Fifth Amendment in effect in Puerto Rico by its own force, Arroyo v. Puerto
Rico Transp. Authority, 1947, 164 F.2d 748.
The Virgin Islands constitute an unincorporated territory, Soto v. United States,
3 Cir., 1921, 273 F. 628. This court, however, has held that the due process
clause of the Fifth Amendment extends to the Islands by its own force as a
limitation on legislation enacted there. Soto v. United States, supra; Thornberg
v. Jorgensen, 3 Cir., 1932, 60 F.2d 471. While the Organic Act of the Virgin

Islands which was enacted in 1936 did not extend the Constitution to the
Islands (Cf. Alaska and Hawaii, 48 U.S.C.A. 23, 495), it does contain a Bill
of Rights which includes a due process and equal protection clause. 48
U.S.C.A. 1406g.
9

For presumptions of negligence, see Seaboard Airline Ry. Co. v. Watson, 1932,
287 U.S. 86, 53 S.Ct. 32, 77 L.Ed. 180; Atlantic Coast Line R. Co. v. Ford,
1933, 287 U.S. 502, 53 S.Ct. 249, 77 L.Ed. 457; Hawkins v. Bleakly, 1917, 243
U.S. 210, 37 S.Ct. 255, 61 L.Ed. 678; Easterling Lumber Co. v. Pierce, 1914,
235 U.S. 380, 35 S.Ct. 133, 59 L.Ed. 279. Cf. Western & Atlantic Railroad v.
Henderson, 1929, 279 U.S. 639, 49 S.Ct. 445, 73 L.Ed. 884
For presumptions of criminal or fraudulent intent or knowledge, see Adler v.
Board of Education, 1952, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517; Morrison
v. California, 1934, 291 U.S. 82, 54 S.Ct. 281, 78 L.Ed. 664; Hawes v. State of
Georgia, 1922, 258 U.S. 1, 42 S.C. 204, 66 L.Ed. 431. Cf. Manley v. State of
Georgia, 1929, 279 U.S. 1, 49 S.Ct. 215, 73 L.Ed. 575.
For presumptions that findings of fact of a commission or board are correct, see,
e.g., Meeker & Co. v. Lehigh Valley R.R., 1915, 236 U.S. 412, 35 S.Ct. 328, 59
L.Ed. 644.
See also Oyama v. State of California, 1948, 332 U.S. 633, 68 S.Ct. 269, 92
L.Ed. 249; McFarland v. American Sugar Co., 1916, 241 U.S. 79, 36 S.Ct. 498,
60 L.Ed. 899; Bandini Co. v. Superior Court, 1931, 284 U.S. 8, 52 S.Ct. 103,
76 L.Ed. 136; Republic Aviation Corp. v. N.L.R.B., 1945 324 U.S. 793, 65
S.Ct. 982, 89 L.Ed. 1372.

10

White v. Tennant, 1888, 31 W.Va. 790, 8 S.E. 596

11

Easterly v. Goodwin, 1868, 35 Conn. 279, (several years); Culbertson v. Board

of Com'rs, 1876, 52 Ind. 361 (27 months); Sears v. City of Boston, 1840, 1
Metc. Mass., 250 (16 months); Dupuy v. Wurtz, 1873, 53 N.Y. 556 (9 years);
In re Patience, 1885, 29 Ch.Div. 976 (70 years); Winans v. Att'y Gen., 1904,
A.C. 287 (54 years)

12

Easterly v. Goodwin, supra; Dupuy v. Wurtz, supra; Udny v. Udny, L.R. 1 H.L.
(Sc.) 441 (1869); In re Patience, supra; Winans v. Att'y Gen, supra

13

At least two Supreme Court cases have involved statutory presumptions of

jurisdictional facts, rather than of other facts. The Court did not advert to the
distinction in either opinion, but based its conclusions on the Turnipseed rule.
Tot v. United States 1943, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519; Yee
Hem v. United States, 1925, 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904

14

Appearances were filed in 296 of these uncontested cases; defendants were

adjudged in default in 46 of them
1887
to
1906 1916 1922 1923 1924 1925 1926 1927 1928 1929 1930 1931
Per Cent
Contested 15.4 13.6 14.1 13.4 13.8 12.8 12.1 11.9 11.7 11.8 12.6 13.9

15

Percentages adduced from Ann. Rep. Iowa Div. Vital Statistics 98(1951); Ann
Rep. Nebraska Bureau Vital Statistics 72 (1951)

16

Percentages adduced from Marriage and Divorce 56(1930); Florida Vital

Statistics, Ann. Rep. Supp. I, 85 (1951)

17

The legislative history of the statute shows without a doubt that the Legislative
Assembly intended to confer jurisdiction to divorce regardless of domicile,
rather than merely to establish a rule of evidence. In early 1953 a bill was
passed making six weeks' residence the equivalent of domicile for divorce
purposes. Bill No. 54, 17th Legislative Assembly of the Virgin Islands (2d
Sess., 1953). This bill was vetoed by the Governor, whereupon the statute
before us was passed and signed

18

Williams v. North Carolina (II), 1945, 325 U.S. 226, 229-230, 65 S.Ct. 1092,
1095, 89 L.Ed. 1577. See also Restatement, Conflict of Laws 110, comment
a; Goodrich, Conflict of Laws 396 (3d ed.)

19

Haddock v. Haddock, 1906, 201 U.S. 562, 576-578, 26 S.Ct. 525, 50 L.Ed. 865

20

Williams v. North Carolina (I), 1942, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279

21

Williams v. North Carolina (II), 1945, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed.
1577

22

Sherrer v. Sherrer, 1948, 334 U.S. 343, 68 S.Ct. 1087, 1097, 92 L.Ed. 1429;
Coe v. Coe, 1948, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451

23

Following the Sherrer and Coe cases, supra note 22, the Supreme Court has
held that if a person cannot collaterally attack the decree by the law of the state
which rendered it, he cannot do so in the second state. Johnson v. Muelberger,
1951, 340 U.S. 581, 71 S.Ct. 474, 95 L.Ed. 552. See also Cook v. Cook, 1951,

342 U.S. 126, 27 S.C.t 157, 96 L.Ed. 146

In state courts it has been suggested that fraud on the court as to its jurisdiction
permits a subsequent re-examination of jurisdiction by either party in a court of
another state. Chirelstein v. Chirelstein, 1950, 8 N.J.Super. 504, 73 A.2d 628,
modified on other grounds, 1951, 12 N.J.Super, 468, 79 A.2d 884; Staedler v.
Staedler, 1951, 6 N.J. 380, 78 A.2d 896. Cf. DuPont v. DuPont, De. 1952, 90
A.2d 468, certiorari denied, 1952, 344 U.S. 836, 73 S.Ct. 46 (fraud, other than
respecting jurisdiction, not grounds for collateral attack).
Another version of estoppel prevents a subsequent attack for want of
jurisdiction by be party who procured the decree. Under the version,
nonparticipating spouses and even third parties have been barred from attacking
jurisdiction in a second suit in another state. For extremes, see Harris v. Harris,
1952, 90 U.S.App.D.C., 196 F.2d 46; Judkins v. Judkins, 1952, 22 N.J.Super.
516, 92 A.2d 120. Cf. Ludwig v. Ludwig, 1948, 413 Ill. 44, 107 N.E.2d 848.
24

Sutton v. Leib, 7 Cir., 1951, 188 F.2d 766, 768. 'We have searched the
numerous cases decided by the Supreme Court of the United States on the
subject of migratory divorce for a definitive holding as to the judicial status of
such divorce in the state that decreed it. It appears to be assumed that the decree
is valid and binding in the state where it is rendered (citing).'

25

Sutton v. Leib, 1952, 342 U.S. 402, 72 S.Ct. 398, 96 L.Ed. 448. 'The New York
decree * * * is entitled to full faith throughout the Nation, in Nevada as well as
in Illinois.' 342 U.S.at 408, 72 S.Ct. at page 402, 96 L.Ed. 448

26

See Phelps & Others v. Brewer & Others, 1852, 9 Cush.,Mass., 390;
Woodward v. Tremere, 1828, 6 Pick.,Mass., 354; Hall v. Williams, 1828, 6
Pick., Mass., 232. See also Smith v. Colloty, 1903, 69 N.J.L. 365, 55 A. 805

27

In D'Arcy v. Ketchum, 1850, 11 How. 165, 13 L.Ed. 648, the Supreme Court
construed the full faith and credit clause and the Act of 1790 enacted pursuant
thereto not to alter the settled rule of international law previously existing. A
judgment rendered in one state purporting to bind a citizen of another was not
entitled to respect in the foreign state if the defendant had neither been served
with process nor voluntarily appeared in the action. Thus a Louisiana court
need not honor a New York judgment against a joint debtor not served in the
New York suit, although there was no question of the validity of the judgment
in New York under a statute of that state authorizing such judgment
In Baker v. Baker, Eccles & Co., 1917, 242, U.S. 394, 37 S.Ct. 152, 61 L.Ed.
386, the Court reviewed the history of the full faith and credit clause and the
developed rule that a judgment in personam in one state need not be credited in

another without service of process on the defendant in the first action. 'This rule
became established long before the adoption of the 14th Amendment, as the
result of applying fundamental principles of justice and the rules of
international law as they existed among the states at the inception of the
government.' 242 U.S.at 402, 37 S.Ct.at page 155, 61 L.Ed. 386. 'During the
same period, however, it occasionally was intimated, if not held, by some of the
state courts, that a personal judgment, effective within the territory of the state,
could be rendered against a nonresident defendant who did not appear and
submit himself to the jurisdiction * * * it is difficult to see how such a
judgment could legitimately have force even within the state. But until the
adoption of the 14th Amendment (1868) this remained a question of state law.'
242 U.S.at 402-403, 37 S.Ct.at page 155, 61 L.Ed. 386.
28

Baker v. Baker, Eccles & Co., 1917, 242 U.S. 394, 37 S.Ct. 152, 61 L.Ed. 386;
Riverside and Dan River Cotton Mills v. Menefee, 1915, 237 U.S. 189, 35
S.Ct. 579, 59 L.Ed. 910

29

Restatement, Conflict of Laws Sec. 43

30

Because we are analogizing the Virgin Islands to a state, we refer to the

Fourteenth Amendment. As pointed out in footnote 8, supra, however, the
Islands are subject to the due process clause of the Fifth Amendment as well as
to the due process clause in the Organic Act

31

'I think a major operation is (necessary). The Constitution does not mention
domicil. Nowhere does it posit the powers of the states or the nation upon that
amorphous, highly variable commonlaw conception. Judges have imported it.
The importation, it should be clear by now, has failed in creating a workable
constitution criterion for this delicate region.' Rutledge J., dissenting in
Williams v. North Carolina (II), supra, 325 U.S.at 255, 65 S.Ct.at 1107, 89
L.Ed. 1577
'Domicil, as a substantive concept, steadily reflects neither a policy of
permanence nor one of transiency. It rather reflects both inconstantly. The very
name gives forth the idea of home with all its ancient associations of
permanence. But 'home' in the modern world is often a trailer or a tourist camp
* * * beyond this, 'home' in the domiciliary sense can be changed in the
twinkling of an eye, the time it takes a man to make up his mind to remain
where he is when he is away from home. * * * Domicil thus combines the
essential contradictory elements of permanence and instantaneous change.' Id.,
325 U.S.at pages 257-258, 65 S.Ct.at page 1107, 89 L.Ed. 1577.

32

See Burch v. Burch, 3 Cir., 1952, 195 F.2d 799, 806-807, in which this Court
construed 'incompatibility of temperament' to require 'disharmony * * * so deep

and intense as to be irremediable,' not merely 'those petty quarrels and minor
bickerings which are but the evidence of that frailty which all humanity is heir
to.' The opinion of the district court in the case before us states that the plaintiff
made out a case of incompatibility, and we are not asked to review this finding
33

Grounds for divorce in Connecticut are 'Adultery; fraudulent contract; willful

desertion for three years with total neglect of duty; seven years' absence * * * ;
habitual intemperance; intolerable cruelty; sentence to imprisonment for life or
the commission of any infamous crime involving a violation of conjugal duty *
* * ; legal confinement, because of incurable mental illness, for at least five
years * * * .' Conn. Gen. Stat. 7327 (1949)

34

Hartford Accident & Indemnity Co. v. Delta & Pine Land Co., 1934, 292 U.S.
143, 54 S.Ct. 634, 78 L.Ed. 1178 (denial of due process for forum to apply its
law that time limitation in insurance policy was invalid, when policy issued in
another state whose law permitted such provision); Home Ins. Co. v. Dick,
1930, 281 U.S. 397, 50 S.Ct. 338, 74 L.Ed. 926 (denial of due process for
forum to apply to an insurance policy issued in Mexico and containing a time
limitation valid by Mexican law a statute of the forum invalidating such a
provision). See also John Hancock Mut. Life Ins. Co. v. Yates, 1936, 299 U.S.
178, 57 S.Ct. 129, 81 L.Ed. 106, and Order of United Commercial Travelers v.
Wolfe, 1947, 331 U.S. 586, 67 S.Ct. 1355, 91 L.Ed. 1687, basing similar
conclusions in cases similar to the above on the full faith and credit clause

Dean Wigmore cites many cases to support the view that a legislature has the
broadest discretion in establishing these rules of prima facie evidence. See 4
Wigmore, Evidence Sec. 1356 (3d ed.)

For such a situation, see the setting of the controversy in Williams v. State of
North Carolina, supra, as vividly outline in Powell, and Repent at Leisure, an
Inquiry into the Unhappy Lot of Those Whom Nevada Hath Jointed Together
and North Carolina Hath Put Asunder, 1945, 58 Harv.L.Rev. 930, 932-933,
notes 6 and 7